Public Interest Litigation
Public interest litigation is a fundamental means of exposing and resolving novel and important issues of concern for the benefit of the community. It can be an effective law reform and advocacy tool for furthering important public interest issues. Unfortunately, there are several barriers to public interest litigation, including: the risk of adverse costs orders; the cost of legal advice; and, the practice of silencing dissenting voices through SLAPP (strategic litigation against public participation) writs.
Protective Costs Orders
In its role as a pro bono legal referral service for public interest cases, PILCH has observed that many meritorious public interest matters are not ultimately pursued because of the risk of an adverse costs order. In this way, the costs regime acts as a disincentive to public interest litigation, particularly for marginalised and disadvantaged people.
The general rule in civil proceedings in common law jurisdictions is that unsuccessful applicants pay the successful party’s legal costs. As a pro bono referral service, PILCH has observed that the risk of adverse costs orders is a significant deterrent to applicants with meritorious public interest claims bringing proceedings. PILCH considers that the current costs system is an impediment to access to the courts for disadvantaged and marginalised litigants, who are often afraid of being unable to pay costs if unsuccessful in their claims. Protective cost orders have the potential to advance the rule of law, address uncertainty, and provide opportunity to public interest parties.
Unlike other jurisdictions, Australia does not have a specific public interest costs regime. Whilst courts have the discretion as to whether or not to make a costs award in favour of a successful litigant, they have been inconsistent in their application of this discretion in public interest cases.
Courts in other jurisdictions have been prepared to make orders protecting public interest litigants against adverse costs orders. The orders are described as ‘protective costs orders’ (PCOs) and may include orders that: a party will not be exposed to an order for costs if it loses at trial; the amount of costs that a party will be required to pay if it loses at trial will be capped at a certain amount; or there will be no order for costs whatever the outcome of the trial.
PILCH believes that the legislature should intervene and confirm the courts’ jurisdiction to make PCOs and clarify what factors are relevant to the discretion to make such an order in public interest matters.
New South Wales public interest litigation
In August 2011, PILCH made a submission to the New South Wales Law Reform Commission in response to Consultation Paper 13 ‘Security for Costs and Associated Costs Orders’: http://www.lawlink.nsw.gov.au/lawlink/lrc/ll_lrc.nsf/pages/LRC_cp13.
PILCH’s submission proposed a number of legislative amendments, including codifying the right to recover costs in pro bono matters and a specific legislative amendment to allow courts to make protective cost orders in public interest cases. In relation to the first issue, PILCH recommended codification of the right to recover costs in pro bono matters in light of the current uncertainty in the law. PILCH submitted that recovery of costs by pro bono legal practitioners promotes access to justice in that it retains pro bono capacity within pro bono firms and ensures a level playing field between litigants. In relation to the second issue, PILCH proposed a refinement of its previous submission to the Victorian and Federal Attorneys-General on the issue of protective cost orders, and recommended a two stage approach where the question of whether the proceeding is a ‘public interest proceeding’ becomes a threshold question. Once a court is satisfied that the proceedings are ‘public interest proceeding’, then the court proceeds to the second stage to determine what protective cost order is appropriate in all the circumstances.
Protective Costs Orders in Public Interest Litigation: Jurisprudence Review 2011
In March 2011, PILCH conducted a jurisprudence review of protective costs orders, which provides a comprehensive survey of comparative case law on the award of costs in public interest litigation in Australia, the UK, Canada and South Africa. The review also considers legislative regimes for Australia.
The review is intended to assist public interest litigants and their legal practitioners in identifying the relevant criteria for protective cost order applications (PCO). By identifying the more progressive PCO jurisprudence in other Commonwealth countries, the report complements PILCH’s submission for the introduction of legislative PCO regimes in Australia.
Federal public interest litigation
In April 2009, PILCH made a submission to the Commonwealth Attorney-General’s office proposing that the High Court, Federal Court and Federal Magistrates' Court be conferred with specific power to make protective costs orders in ‘public interest’ litigation.
PILCH’s submission proposed a specific legislative amendment that would allow courts to make protective cost orders in public interest cases. PILCH has also made a similar submission to the Victorian Attorney-General in respect of the Victorian courts.
Victorian public interest litigation
In September 2008, PILCH made a submission to the Victorian Attorney-General’s office proposing that the Victorian Supreme Court be specifically conferred with power to make protective costs orders in relation to ‘public interest matters’.
PILCH’s submission proposes a specific legislative amendment to the Supreme Court Act 1986 (Vic) which will allow courts to make protective cost orders in public interest cases. PILCH also encourages similar amendments be made to the County Court Act 1958, the Magistrates’ Court Act 1989 and in the Federal jurisdiction.
SLAPP Writs
SLAPP Writs, short for strategic litigation against public participation, are a form of lawsuit which is seemingly on the rise in Australia. This type of action is commonly brought by corporations with an intention of intimidating and silencing protestors, activist organisations, journalist, newspapers, publishers and outspoken individuals who voice issues of public interest or concern. Defendants to SLAPP writs experience both financial and emotional hardship often being unable to afford legal representation to defend the charges against them.
Despite the introduction of uniform defamation legislation in 2006, SLAPP writs represent a real and continuing threat to public debate in Australia. Currently, there is no Australian jurisdiction with anti-SLAPP writ legislation.
PILCH is currently involved in a law reform project seeking the introduction of public participation legislation specifically aimed at empowering the courts to summarily dismiss proceedings which are brought or maintained for an improper purpose.
Draft Bill to Protect Public Participation
In April 2009, PILCH presented a submission to the Victorian Attorney-General that proposed the introduction of legislation that safeguards public interest communications and activities by protecting against litigation that would have the effect of silencing public participation.
Included in the submission is a draft Bill for an Act to Protect and Encourage Public Participation, which was prepared by PILCH with substantial assistance from law firm Herbert Geer and Brian Walters SC.
Waiver of Court Fees in Victoria
In December 2008, PILCH, in conjunction with the Federation of Community Legal Centres (FCLCs) and the Law Institute of Victoria (LIV), submitted a letter to the Chief Justice of the Supreme Court of Victoria noting the legal professions concerns regarding access to fee waivers in the Victorian court system.
Unlike in the Federal court system, where express exemptions from court fees can be granted in certain circumstances and judges can exercise distretion to waive fees where payment would cause financial hardship, there is no single process in Victoria for applying for a fee waiver.
It is in this light that PILCH, the FCLCs and the LIV have suggested:
- a single waiver form for all Victorian courts and tribunals
- a memorandum of understanding between PILCH and the relevant courts and tribunals regarding automatic waiver of fees in certain circumstances
- waiver of fees on certification by pro bono coordinators of recognised pro bono service providers.